Gender Discrimination. The Influence Of The Court Of Justice Of The European Union Jurisprudence

• Author: Dragos Lucian Radulescu, Delia Mihaela Marinescu
• Pages: 68-73

GENDER DISCRIMINATION. THE INFLUENCE OF THE COURT

OF JUSTICE OF THE EUROPEAN UNION JURISPRUDENCE

Lecturer Dragoş Lucian RĂDULESCU1

Lawyer Delia Mihaela MARINESCU2

Abstract

Gender discrimination in labor legal relationships implies unlawful acts by employers against the principle of

equal treatment, which have forms of inequalities as their direct, or indirect object, and the employees’ prejudicies as

their effect. As a result, employees who find themselves in comparable legal situations in employment relationships will

be subject to mechanisms that ultimately involve a process of limiting the use of their fundamental rights and freedoms

as regards access to employment, vocational training, promotion and equal working conditions. The prohibition of

discrimination facts on gender criterion in labor relations implies the adaptation of the national laws of the Memb er

States to the new provisions of the European normative acts, a transposition process which presupposes the acceptance

of the limitations and the recognition of the concepts in the field, when the interpretation of these norms in the legal

practice of the domestic courts are in creasingly applying the CJEU jurisprudence. The article presents aspects of

European and national laws on gender discrimination, the criticism of the lack of regulation, and the analysis of the

role of CJEU jurisprudence in the field of employment legal relationships.

Keywords: discrimination, gender, jurisprudence, labor.

JEL Classification: K31, K33

1. Legislation applicable to gender discrimination

From the point of view of the primary legislation applicable to gender discrimination, one

can see the influence of the normative provisions in the consolidated version of the Treaty on

European Union, referring to the non-discrimination provisions of articles 2 and 3 on the

mechanisms and actions needed to combat social exclusion3 in employment legal relationship.

On the one hand, these mechanisms for eliminating inequalities are also found in articles 8

and 9 of the consolidated version of the Treaty on the Functioning of the European Union, the

normative act on the promotion of equality between men and women, respectively prohibitions on

discrimination on protected criteria starting with citizenship, with implicit reporting to gender

differences or sexual orientation.

The Charter of Fundamental Rights of the European Union, on the other hand, contains

provisions contained in articles 1, 21 and 22 concerning the recognition of human dignity as the

fundamental right of the person, with reference to non-discrimination on grounds of sex, gender or

sexual orientation, issues that underpin the protection in the field of labor legal relations, including

the possibility for Member States to introduce positive measures in support of the underrepresented

sex rights.

Similar mechanisms for combating discrimination on gender grounds are also found in the

relevant European directives, in particular in the framework of Directive 2002/73/EC4 amending

Directive 76/207/EEC5 and Directive 2006/54/ EC6.

1 Dragoş Lucian Rădulescu - Petroleum-Gas University of Ploiești, Romania, dragosradulescu@hotmail.com.

2 Delia Mihaela Marinescu - Prahova Bar Association, Romania, delia.marinescu@gmail.com.

3 Cristine M. Bulger, Fighting gender discrimination in the Chinese workplace, (Spring 2000), Boston College Third World Law

Journal, p. 348.

4 Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive

76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment,

vocational training and promotion, as well as working conditions.

5 Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to

employment, vocational training and promotion, and working conditions.

6 Directive 2006/54/EC of th e European Parliament and of the Council on the implementation of the principle of equal opportunit ies

and equal treatment of men and women in matters of employment and occupation.